By: Jon Khan, Osgoode Hall Law School.
For more on this topic, see Jon’s article in issue 45:2 of the Dalhousie Law Journal.
We often hear that the legal system was designed by lawyers for lawyers or by legal actors for legal actors. But I think that this common idea is wrong.
No one would intentionally “design” a legal system to operate like Canada’s currently does.
Really, most of what we do in Canada’s legal system organically evolved. When change is needed, reformers don’t use a comprehensive “design” process. Their method relies on central values, traditions, anecdotes, and intuitions.
How I’m using the word design and why Canada’s legal system largely lacks it
To be clear, I’m using the word “design” in the technical sense—like, for example, computer designers do: “to create, fashion, execute, or construct according to plan.” Those designers couldn’t build the software or hardware I need to communicate these ideas today without a comprehensive design process and deliberate, tested designs for their products. In designing my computer, for example, those designers had two goals:
- truly understand users like me; and
- provide me the best possible user experience that meets my needs and solves my problems.
Canada’s legal system should be no different. It is a public product and service with many users.
Yet we don’t and can’t understand the user experience of most individuals in it—not the experience of courts, judges, litigants, or lawyers:
- Comprehensive data about Canada’s legal system, including comprehensive insights about courts, judges, litigants, and lawyers is either non-existent or not public.
- Basic facts remain mysteries—like, how many accused plead guilty each year; how long an accused must wait to hear whether they’re going home or to jail; or how many accused address their guilt or innocence without adequate help. The civil justice system is no better: we don’t even know the national Canadian divorce rate.
Despite this deficit, we do know that individuals in Canada’s courts are also not getting the best user experience—one that meets their needs and solves their problems. One where every litigant gets the same access to justice in any Canadian court regardless of who they are, where they come from, what they did, or how much money they make.
Individuals in Canada’s courts unfortunately don’t access such uniform justice. For example, the little data we do have suggests that Canadian accused don’t experience uniform, impartial justice. Judges and courts make herculean efforts, yet most criminal accused face a lottery they didn’t sign up for. Some likely get better results simply because of where they live; who they can or can’t hire; who their decision-maker is; or many factors that shouldn’t matter.
And the why might be simple. Actual laws and practices change. But how we reform Canada’s legal system mostly doesn’t. Canada’s incredible legal data deficit persists: we still know more about sports teams than we do about our legal system. And the traditional approach to legal reform and its organic, evolutionary method still dominates.
Rejecting the traditional approach to legal reform
My recent article in the Dalhousie Law Journal—”If I Had More Time, Would I Have Written a Shorter and Faster Decision? An Empirical Examination of the Evolution of Trial Court Decisions”—seeks to persuade readers to reject the traditional approach to legal reform. Instead, it advocates for a comprehensive, user-focused, data-driven approach to legal reform.
The article draws from my 2019 LL.M. thesis where I sought to understand two things:
- how current approaches to judicial decision-writing may impact access to justice;
- how decisions could be a better source of data and more timely, concise, accessible, and consistent.
It presents the results and analysis of an original empirical study of the evolution of British Columbia trial decisions over 40 years (1980-2018). If you want to learn more about the study’s conclusions, they’re visualized here. In short, the study suggests two main things:
- The current process for writing Canadian judicial decisions likely does not further the goals of access to justice and may even hinder them. Further study and targeted reforms are urgently needed to address delay, timeliness, accessibility, and consistency in Canadian judicial decisions.
- Reforms must not be based on anecdote, intuition, one-off examples, or single empirical studies. Instead, proposed reforms should be based on more deliberate design strategies such as those that human-centred design employs. For example, courts could and should generate extensive, transparent data on judicial decision-writing, judicial decisions, and the judicial process; rely on interdisciplinary methods to better understand current problems; ideate new ways of writing decisions that respond to that research; prototype and iterate those new ideas; and finally, extensively consult users about writing and reading decisions.
Epilogue: Doing empirical legal research in Canada is difficult
I must mention a final point. Empirical legal research—like the study in my recent article—is surprisingly difficult in Canada. The data needed to do such research and generate successful reforms is either not gathered; poorly gathered; not shared; not accessible; or housed in commercial and information monopolies. As my recent article suggests, most of what we hear and know about the criminal justice system “is anecdotal – descriptions rather than measurements.”
Gathering the most basic information about our justice system is a basic task. The decisions that Canadian judges must issue in criminal justice cases hold incredible historic and current data. They’re the “primary mechanism by which judges account to the parties and to the public for the decisions they render.” The same is often true in our civil justice system.
Judges don’t issue their decisions for the corporate or information monopolies that currently house them (who then largely preclude bulk access while generating profits and monopolies). Judges issue these decisions for all Canadians, including taxpayers. They’re the work product that any Canadian has the legal right to review—to “satisfy themselves that justice has been done, or not, as the case may be.”
Democratizing free, open access to all judicial decisions—and the anonymized court records accompanying them—is essential to unlocking desperately needed criminal and civil justice data. It could invite far more empirical evaluation and reform in Canada’s legal system.
Both the United Kingdom and United States recently recognized this truth. The UK committed to provide democratic, open access to all judicial decisions—free of monopoly—by 2022, and it’s achieved its promise, including to provide machine readable decisions. The US has largely committed the same for anonymized court records (but with a slower timeline).
Nothing indicates that Canada’s criminal and civil justice system is about to get such a basic or imperative reform. Almost every Canadian court is chronically underfunded by the provinces and understaffed by the federal government. Modernizing the court system garnered almost no attention during Election 44 (the current federal government was the only party to commit any money ($50m) to modernizing courts) or since (the current federal government contributed no money to modernizing courts in its last budget).
In reality, spreadsheets are necessary for equitable justice. I hope governments and courts agree and dedicate the money and resources to gather and democratically release more data about Canada’s legal system.